Jackson v. Olsen, CASE NO. 4:12-CV-11463

MICHAEL LLOYD JACKSON, Petitioner, v. KATHLEEN OLSEN, Respondent.

CASE NO. 4:12-CV-11463

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

November 8, 2017

HONORABLE GERSHWIN A. DRAIN UNITED STATES DISTRICT COURT

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS [201 AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

Michael Lloyd Jackson, ("Petitioner" or "Jackson"), incarcerated at the Ojibway Correctional Facility in Marenisco, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Dkt. No. 20. In his application, filed pro se, Petitioner challenges his conviction for felon in possession of a firearm, Mich. Comp. Laws § 750.224f; possession of a short-barreled shotgun, Mich. Comp. Laws § 750.224b; and two counts of possession of a firearm in the commission of a felony ("felony-firearm"), Mich. Comp. Laws § 750.227b. For the reasons stated below, the petition for writ of habeas corpus is DENIED. Accordingly, the Court will also DENY Petitioner's Request for a Certificate of Appealability and Leave to Appeal In Forma Pauperis.

I. Background

Petitioner was convicted following a jury trial in the Bay County Circuit Court. This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009). The Michigan Court of Appeals stated:

This case has its origins in an apparent altercation between several men at a residence in the early morning hours of July 4, 2008, in Bay City, Michigan.

James Lyman testified that he was a police officer with the Bay City police department. Lyman stated that he responded to a dispatch concerning a fight that possibly involved a firearm. As he drove toward the area indicated in the dispatch, he saw three men headed away from him and toward 11th Street and another three men headed toward his car. Lyman stopped his car, exited, and ordered the three men approaching him to the ground. Lyman agreed that defendant was yelling and excitable at the scene and that he said something to the effect that those other guys were "swingin' on some girls," which he understood to mean striking them. Because the three men would not comply with his order, he drew his gun and repeated his order. Eventually, the three men got on the ground.

Officer John Harned testified that he was following Lyman on the way to the scene. He saw Lyman pull over next to three men. He, however, proceeded past Lyman and drove towards the three men who were walking away. The three men ran to the west and he lost them. Harned testified that all three of the men that ran away were wearing white t-shirts. After he lost sight of the three men, Harned went back to the point where Lyman stopped and helped him securethe scene.

Officers Leslie Gillespie and Brad Peter testified that they too responded to the dispatch. When she arrived, Gillespie saw that Lyman had three suspects on the ground at gun point. She assisted officer Lyman in handcuffing the suspects. When Peter arrived, Lyman and Gillespie had already secured the three suspects. Gillespie also noticed that a car was parked somewhat "cock-eyed into a driveway"; part of the car was "in the road, part was up into the driveway." She said she recognized the car from a stop that she had made two weeks earlier and that the car belonged to defendant. She said the car was running, had its lights on, and the front driver's side door was open. She also said that defendant had some injuries to his face—his eye was swollen.

Dawn Harsch testified that she lived next door to the home at issue. In the early morning hours of July 4, 2008, she heard "a lot of yelling" and so she looked outside. She saw a taller black man with a gun. The man started to take off his shirt and passed the gun to a shorter black man. The shorter black man then took the gun and stuck it in her yard. She stated that the shorter black man had a shirt on. Harsch told her husband to call 9-1-1, but the police arrived even before he could call. She then got her robe and went outside to tell an officer where the gun was located.

Officer Peter said that a neighbor approached him at the scene and spoke to him. After he spoke with her, Peter searched the bushes near the woman's home next to a fence. There he found a small sawed-off shotgun. Peter said that the neighbor indicated that the man with no shirt had had the shotgun. Defendant had no shirt on. The other two men detained at the scene, Cory Jackson—defendant's brother—and Malcolm Baty, both had shirts on. Harned said that he found a t-shirt lying in the driveway just south of where they located the gun. Harned noted that defendant was the only person at the scene who did not have a shirt on.

. . . .At trial, the prosecutor asked Harsch whether an officer had asked her if she could identify the man who had the gun and she testified that "he did." The prosecutor then asked her whether she pointed to one of the men in custody and she said, "no." The prosecutor later called Officer Peter to the stand and asked him whether he had asked Harsch if she could identify the man who had the shotgun at the scene and he stated that he did. When the prosecutor asked what she did or said, defendant's trial counsel objected to the question because it asked for hearsay. The prosecutor responded that he was offering the testimony as a prior inconsistent statement because Harsch had testified that she did not identify defendant as the taller black man who had the shotgun. See MRE 801(d)(1)(A). The trial court agreed that the testimony was admissible for that purpose. At that point, Peter testified that, after he asked Harsch if she could identify the man with the shotgun, she "pointed to the black male subject who was on the ground who had no shirt on." Defendant's trial counsel then cross examined Peter about the circumstances under which Harsch pointed out defendant and noted that she might simply have pointed to him because he was the only man left who was not wearing a shirt.

After defendant's trial counsel made his motion for a directed verdict, the prosecutor asked the trial court to instruct the jury that Peter's testimony that Harsch pointed to defendant could be used as substantive evidence that defendant possessed the shotgun, rather than just evidence of a prior inconsistent statement. The trial court agreed that it was admissible for that purpose under MRE 801(d)(1)(C) and later instructed the jury that it could use the testimony as evidence that defendant possessed the shotgun.

People v. Jackson, No. 294112, 2011 WL 192390, at *1-2, 9-10 (Mich. Ct. App. Jan. 20, 2011).

Petitioner's conviction was affirmed on appeal by the Michigan Court of Appeals, although the case was remanded to the trial court to amend the judgment of sentence to reflect the correct amount of credits for time served. Id. at *1.Petitioner did not file an application for leave to appeal to the Michigan Supreme Court. See Aff. of Corbin R. Davis, Clerk of the Michigan S. Ct., dated July 24, 2012. Dkt. No. 7-15.

Jackson filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, which was held in abeyance to permit him to return to the state courts to exhaust additional claims which had not yet been presented to the state courts. Jackson v. Smith, No. 4:12-CV-11463, 2013 WL 2447783 (E.D. Mich. June 5, 2013), Dkt. No. 15.

Petitioner filed a post-conviction motion for relief from judgment with the trial court, which was denied. People v. Jackson, No. 08-10666-FH (Bay Cty. Cir. Ct. July 1, 2013), reconsideration denied, No. 08-10666-FH (Bay Cty. Cir. Ct. July 31, 2013). The Michigan appellate courts denied Jackson leave to appeal. People v. Jackson, No. 318547 (Mich. Ct. App. Mar. 17, 2014), leave denied, 497 Mich. 903, 856 N.W.2d 35 (2014).

On September 12, 2016, this Court reopened the case to the Court's active docket, amended the caption, and permitted Petitioner to file an amended habeas petition. See Dkt. No. 21.

In his original habeas application, Petitioner sought relief on the following grounds:

I. There was insufficient evidence that he possessed the shotgun, so as to support his conviction.

II. There was insufficient evidence to convict him on the felon in possession of a firearm charge because there was no requisite felony, and Petitioner's counsel was ineffective for stipulating that there was a requisite felony.

III. The trial court violated his due process rights when it admitted a police officer's testimony about another witness's statement of identification, where there was no proper identification procedure.

Dkt. No. 1, p. 17 (Pg. ID 17). In his amended habeas application, Petitioner raises additional claims, which this Court will number as claims four through six:

IV. His conviction for felon in possession of a firearm violated the Ex Post Facto Clause and the Due Process Clause.

V. He was denied the effective assistance of appellate counsel where his attorney did not raise issues in his appeal as of right.

VI. He was denied the effective assistance of trial counsel because trial counsel stipulated to a prior conviction that allegedly did not exist.

II. Standard of Review

28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), imposes the following standard of review for habeas cases:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

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